Arbitration vs. Mediation: What Is the Difference?
Two distinct ways of resolving your dispute out of court
on May 3, 2022
The traditional litigation process is time-consuming and costly. Legal issues like divorce can sometimes take years to reach a settlement agreement or final decision. Parties seeking a quicker, more cost-effective resolution of the dispute now look to an emerging area of the legal industry known as “alternative dispute resolution” (ADR).
ADR avoids the courtroom altogether, with disputing parties instead opting to have their issues resolved by a neutral third party. ADR comprises two distinct processes that parties can choose: arbitration or mediation. While both methods utilize neutral parties to drive resolution, the roles of these parties can change depending on which form of ADR the parties agree to use.
ADR: Two Key Forms of Conflict Resolution
No matter which form of alternative dispute resolution the parties choose, their case will be influenced by a neutral third party. Typically, this neutral party is a retired judge or attorney with experience in ADR protocol and the guiding law. Here are some additional benefits of choosing ADR to resolve a dispute:
- Eases the burden on the legal system by avoiding litigation altogether
- Reduces legal fees for parties through fewer court hearings, filing deadlines, and billable hours
- Focuses on driving compromise through conversation
- Promotes resolution while encouraging flexible, outside-the-box approaches
- Minimizes the stress brought on by litigating private matters in family court and keeps things confidential
There is a crucial difference to remember between the two methods of ADR. In arbitration, the neutral third party renders a final decision in the case. In mediation, the neutral party guides the process and advises throughout, but the disputing parties still retain control over the process and final resolution.
What Is Arbitration?
Arbitration is a form of ADR wherein a neutral third party or parties, known as arbitrators, hear the facts of the case and render decisions. Arbitrators are often retired judges, and with good reason.
Here, the neutral party acts as a private judge to the parties, essentially hearing the evidence and guiding the case through the dispute resolution process before handing down a decision. Unlike mediation, the arbitrator’s decision is typically final.
Arbitrators usually work in panels of three, with each side selecting their own arbitrator before those two arbitrators select a third. Decisions are finalized by a majority vote, and the judges provide written opinions. More often than not, final decisions made during the arbitration process are binding. In contrast, the mediation process is generally non-binding.
What Is Mediation?
The mediation process differs from arbitration because the disputing parties maintain control of the case. The third-party, referred to as the mediator, acts more as a facilitator, driving discussion between the parties to bring compromise and eventually resolution.
Mediation has found success in recent years thanks in part to the process’ friendly, more collaborative environment. With mediation, parties avoid adversarial litigation and are instead encouraged to resolve their differences in a way that can satisfy both parties. In divorce cases, this usually manifests itself through the dividing of marital assets or finalizing a child custody agreement. Additionally, mediation often keeps the decision in the hands of the participants, as opposed to letting a judge decide. Because of this, the mediator role is traditionally filled by a former attorney.
Do I Need a Lawyer for ADR?
It never hurts to have an advocate on your side that is trained in the legal issues affecting your case. However, mediation tends to be a more relaxed environment where the choice to hire attorneys can be left to the parties.
On the other hand, the arbitration process is more formal than mediation and has many of the same traditions of litigation, such as opening and closing arguments. Arbitration requires parties to make arguments that will sway the arbitrators. As such, it is generally an excellent idea to have a lawyer working on your case throughout the arbitration process.
Questions to Ask a Family Law Attorney
Speaking to a family lawyer for the first time can often be intimidating, especially because family law tends to dredge up emotions. Before sitting down with an attorney, consider which questions you’d like to ask them and what answers your ideal attorney might provide. Here are a few examples to help get you started:
- Are the facts of my case a fit for alternative dispute resolution?
- Am I entitled to spousal support or alimony?
- Can I get a restraining order against my spouse if they are a danger to me?
- How are marital assets divided in the divorce process?
- Do I still have to make mortgage payments if I am not listed on the title?
- What constitutes community property and separate property?
- Can I seek a court order forcing my spouse to accept a buyout of the home?
Should I Speak to a Family Law Lawyer?
If you’re contemplating divorce proceedings, consider sitting down with an experienced divorce attorney as soon as possible. A complicated and emotionally taxing process can be made easier with the benefit of a lawyer by your side. A family law attorney from an accomplished law firm can provide essential legal advice on marital assets, child custody, and restraining orders, all while guiding you through the nuances of divorce court.